The videos were core political speech, the most protected form of speech under the First Amendment. Yet the court blocked them, relying on copyright law. What happened?

The trouble is the misguided way that some courts have distinguished "parody” from “satire” in when measuring fair use. "Parody," in the world of copyright, means using a work in order to comment on the work itself (or its creator). Parody gets a wide berth under fair use. So, for example, when 2 Live Crew famously sent-up Roy Orbison’s “Pretty Woman," the Supreme Court found that the use was permitted. A "satire," in contrast, involves using a work to comment on something other than the work itself.

Some courts have drawn the conclusion that "satires" are disfavored under the fair use doctrine. That’s the mistake the court made in Henley v. DeVore. The court determined that "November" was mostly a satire (with a dash of parody), and that "Tax" was a satire through and through. According to the court, if DeVore wanted to use Henley’s songs, he had to be making fun of Henley, not other politicians.

From a First Amendment point of view, this is a bizarre way to address political speech. For the court, the political purpose was a strike against fair use, because the court considered the videos to be a commercial use, seeking "publicity and campaign donations." In contrast, the Supreme Court has recognized that "the First Amendment 'has its fullest and most urgent application' to speech uttered during a campaign for political office." In contexts other than copyright, a law blocking this kind of speech would have to meet the strictest First Amendment scrutiny.

So what about fair use, which is supposed to serve as a proxy for First Amendment concerns? Here, the court appears to have misunderstood the potential for market harm that is a critical part of the fair use test. The test should be informed by the purposes of copyright—ensuring that creators have adequate incentives to create—and the importance of the First Amendment.

Can anyone say that musicians like Don Henley would give up on song-writing if they knew that politicians could use their works in satires? Obviously, no one shopping for "The Boys of Summer" would say, "Hey, you know what, I’ll just watch that DeVore ad again instead." But the court insisted DeVore prove the negative, and show that the videos would not harm the potential licensing market for Henley's songs. The court was apparently concerned that "licensees and advertisers do not like to use songs that are already associated with a particular product or cause."

Under that view, however, few satires will ever pass fair use muster. That would inflict far more harm on future creators than DeVore did on Henley’s works. Satire is an art form that has enriched the political process since time immemorial. In the fourth century BC, Aristophanes, a comic playwright in ancient Athens, routinely skewered politicians and influenced this early democracy. Satire has continued to play a vital role in democracies through today.

Satire is most effective when can draw from the well of society’s shared experiences, using common cultural references to leverage the commentary and reach a wider audience. It can take a known quantity, and add new meaning and message – classic characteristics of a fair use.

Fortunately, courts have increasingly begun to understand that fair use can and should apply to transformative satires. So although the judge in Henley v. DeVore got it wrong, other courts will have a chance to recognize the value of satire and fair use.

Related Updates

A country has the right to prevent the world’s Internet users from accessing information, Canada’s highest court ruled on Wednesday.
In a decision that has troubling implications for free expression online, the Supreme Court of Canada upheld a company’s effort to force Google to de-list entire domains and websites...

EFF has just launched the Summer Security Camp, a two-week membership drive that challenges people everywhere to gather ‘round the online rights movement and prepare for the privacy and free speech challenges in their paths.
Through the 4th of July, anyone can join EFF or renew as a...

The Supreme Court’s unanimous decision in Matal v. Tam striking down the trademark non-disparagement requirement as unconstitutional is a big victory for the First Amendment. First, the Court strongly pushed back against the expansion of the government-speech doctrine, perhaps the biggest current threat to free speech jurisprudence. Second, the...

The U.S. Supreme Court, in Packingham v. South Carolina, unanimously struck down a state law that banned registered sex offenders (RSOs) from using all Internet social media, holding that the law violated the First Amendment.
EFF and our allies Public Knowledge and the Center for Democracy & Technology...

June 15, 2017 is the 100th anniversary of the passage of the Espionage Act. Earlier this year, as if to commemorate the centennial, President Trump suggested to then-FBI Director James Comey that he extend the Act into new territory—that he use it to prosecute journalists.
While no...

One hundred years ago, President Woodrow Wilson signed the Espionage Act into law, and since then it has been used to criminalize the disclosure of national defense and classified information.
Dissent-Stifling Roots At the turn of the 20th century, anti-immigrant, xenophobic sentiments dominated national rhetoric and was consequently...

Does the First Amendment guarantee the right of individuals to record police officers exercising their official duties in public? That is the question being considered by the U.S. Court of Appeals for the Third Circuit in two consolidated cases: Fields v. City of Philadelphia and Geraci v. City of Philadelphia...

The New York State Legislature is considering a bill that would radically reshape its right of publicity law. Assembly Bill A08155 [PDF] would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a...

A lawsuit claiming that Twitter provides material support to terrorists by providing accounts to users who discus or promote terrorism threatens the First Amendment rights of Internet users and Twitter, EFF told a federal appellate court in a brief filed on Wednesday.
The brief [.pdf] also argues that the...